Judgment of the Tribunal on an appeal by The Number (UK) Limited and Conduit Enterprises Limited (“the Appellants”) under section 192 of the Communications Act 2003 against a decision of OFCOM in relation to the resolution of price disputes concerning the supply of certain directory information by British Telecommunications plc (“BT”) to the Appellants (“the Determinations”).
The Determinations concluded that Universal Service Condition 7 (“USC7”), which requires BT to supply the contents of a database containing subscriber information to undertakings following a reasonable request, is unlawful and, as a result, BT is not required to provide access to the database under USC7. Therefore, OFCOM decided that no issues arose under USC7 in relation to the charges paid by the Appellants to BT for the supply of the contents of the database.
The Appellants argued that OFCOM erred in law in deciding that USC7 is unlawful and that, contrary to OFCOM’s findings in the Determinations, USC7 is lawfully made under the domestic statutory framework and entirely consistent with the requirements of the Universal Service Directive (“USD”).
The Tribunal concluded that USC7 was validly imposed. The Tribunal found that the imposition of an obligation at the wholesale level on an undertaking is capable (depending on the factual context) of being a designation of that undertaking to guarantee the provision of universal service, as that concept is set out in Article 8 USD. The designation of an undertaking to provide a service required under USD means no more than the imposition of an obligation to ensure the provision of that service; it is not a requirement that the undertaking enter into a guarantee that the services will be provided. Further, an undertaking which has been designated to provide universal services ought to be able to rely on markets for the actual delivery of those services. USC7, together with the general words of designation in the 2003 Designation, designate BT to guarantee the provision of services falling under Article 5 USD (i.e. the provision of a directory and directory enquiry services) while, at the same time, impose on BT obligations which may validly be imposed on an undertaking which is designated for the purposes of that guarantee.
Accordingly, the Tribunal upheld the appeal against OFCOM’s conclusion that USC7 was unlawful.
The Appellants also raised the possibility that a reference to the ECJ under Article 234 EC Treaty may be required in order to establish the true meaning of Article 8(1) USD and its impact on the construction of Articles 3 and 5 USD. The Tribunal refused to exercise its discretion to refer a question to the ECJ and decided that, while the matter addressed in these proceedings was not “acte clair”, there was no real doubt as to the validity of USC7. In addition, the Tribunal noted that an appeal against the judgment of the Tribunal was far from certain but that the parties would remain free to ask for a reference again if the matter goes any further.
This was the first occasion in which the Tribunal considered substantively the question of a reference under Article 234 EC Treaty.
